Loy v Republic of Vanuatu [2022] VUSC 48; Civil Case 1631 of 2021 (28 April 2022)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU (Civil Jurisdiction)

Civil Case No. 21/1631 SC/CIVL

BETWEEN:	Philimon Loy Claimant
AND:	The Republic of Vanuatu Defendant

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU (Civil Jurisdiction)

Civil Case No. 21/1393 SC/CIVL

BETWEEN:	Pauline Loy Claimant
AND:	The Republic of Vanuatu Defendant

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU (Civil Jurisdiction)

Civil Case No. 21/1713 SC/CIVL

BETWEEN:	Family Molbarav represented by Timothy Molbarav, Kerry Molbarav & Jason Molbarav Claimants
AND: AND:	The Republic of Vanuatu First Defendant Family Loy and Administrator of Estate of Daniel Loy Second Defendants
Date of Hearing	27th January 2022
Date of Decision	28th April 2022
Coram:	Justice Oliver A Saksak
Counsel:	Mr Daniel Yawha for Claimant, Philimon Loy in CC 21/1631
	Mrs Marisan Vire for Claimant , Pauline Loy in CC 21/1393 and Second Defendant in CC 21/1713 Mr Philip Fiuka for Claimant in CC 21/1713 ( Family Molbarav) No appearance for Republic

DECISION

1. The application filed by Mrs Vire on 25^th November 2021 on behalf of the Second Defendant in Civil Case No. 21/1713 is hereby dismissed.
   
2. The applicant will pay the claimant’s costs of the application as agreed or taxed.
   

Background

3. The parties in CC 21/1713 are Family Molbarav as claimant and the Republic as First Defendant and Family Loy and Administrator of the Estate of Daniel Loy as Second Defendant.
   
4. The parties in CC 21/1631 are Philimon Loy as claimant and the Republic as defendant.
   
5. The parties in CC 21/1393are Pauline Loy as claimant and the Republic as the defendant.
   
6. Mr Daniel Yawha is the lawyer on record for Philimon Loy in CC 21/1631.
   
7. Mr Justin Ngwele is the lawyer on record for Pauline Loy in CC 21/1393.
   
8. Mrs Vire now represents the Family Loy and Administrator of the Estate of Daniel Loy instead of Mr Ngwele.
   
9. It is not immediately clear whether Mr Ngwele has ceased acting for the Family Loy and the Estate as there appears no Notice to Cease Acting has been filed. If it is, it is not on the Court’s file.
   
10. Mr Ngwele filed a defence in CC 21/1713 on 13^th August 2021 together with an urgent application seeking orders to strike out the claim and the interlocutory orders issued on July 2021.
    
11. On 15^th October 2021 the Court stayed all applications and these proceedings pending the determination of the Santo/Malo Island Court.
    
12. The Court granted liberty to the claimants to seek a relisting of the proceedings should circumstances permit.
    

Discussion

13. Pauline Loy, Claimant in CC 21/1393 did not apply to relist this matter, instead she applied for the same orders sought by Mr Ngwele in the application filed on 13^th August 2021.
    
14. The application filed by Mrs Vire on 25^th November 2021 is therefore contemptuous and is an abuse of process.
    
15. On 27^th January 2022 the Court issued directions to Counsel to file submissions to assist the Court formulate its decision on the papers.
    
16. The Republic, Mr Yawha and Mrs Vire have not complied with those directions. Only Mr Fiuka filed written submissions on 15^th February 2022 which should have been filed on 9^th February 2022.
    
17. I have read those submissions and entirely agree with them.
    
18. Accordingly the application is dismissed with standard costs as agreed or taxed, to be paid by Pauline Loy to the Claimant within 21 days after agreement or taxation.
    
19. The Orders of 15^th October 2021 continue to apply.
    

DATED at Port Vila this 28^th day of April 2022

BY THE COURT

OLIVER A. SAKSAK
Judge